Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon; Evaluation of Economic Exclusions From August 2003 Final Designation, 46924-46999 [05-15569]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 154 (Thursday, August 11, 2005)]
[Rules and Regulations]
[Pages 46924-46999]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15569]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Designation of 
Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal 
Pool Plants in California and Southern Oregon; Evaluation of Economic 
Exclusions From August 2003 Final Designation; Final Rule

Federal Register / Vol. 70, No. 154 / Thursday, August 11, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU06


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal 
Pool Plants in California and Southern Oregon; Evaluation of Economic 
Exclusions From August 2003 Final Designation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), have re-evaluated 
the economic exclusions made to our previous final rule (68 FR 46683; 
August 6, 2003), which designated critical habitat pursuant to the 
Endangered Species Act of 1973, as amended (Act), for 4 vernal pool 
crustaceans and 11 vernal pool plants. A total of approximately 858,846 
acres (ac) (347,563 hectares (ha)) of land are now designated critical 
habitat. This reflects exclusion of lands from the final designation 
for economic reasons, pursuant to section 4(b)(2) of the Act. This 
designation also reflects the lands previously confirmed for exclusion 
under 4(b)(2) of the Act for non-economic reasons (70 FR 11140; March 
8, 2005). The non-economic exclusions include the boundaries of various 
Habitat Conservation Plans, National Wildlife Refuges and National fish 
hatchery lands (33,097 ac (13,394 ha)), State lands within ecological 
reserves and wildlife management areas (20,933 ac (8,471 ha)), 
Department of Defense lands within Beale and Travis Air Force Bases as 
well as Fort Hunter Liggett and Camp Roberts Army installations (64,259 
ac (26,005 ha)), Tribal lands managed by the Mechoopda Tribe (644 ac 
(261 ha)), and the Santa Rosa Plateau Ecological Reserve (10,200 ac 
(4,128 ha)) from the final designation.

DATES: This rule becomes effective on September 12, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Sacramento Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2800 Cottage, Room W-2605, Sacramento, CA 95825. The 
final rule, economic analysis, and map will also be available via the 
Internet at https://sacramento.fws.gov/.
    We have attempted to address all comments received during the 
comment periods associated with this final rule, however if you believe 
that your comments have not been adequately addressed then the Act 
provides the opportunity for you to petition the Service to amend the 
final critical habitat rule. Petitions should be submitted to the 
address above.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, at the Sacramento 
Fish and Wildlife Office address above; telephone (916) 414-6600; 
facsimile (916) 414-6712.

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 464 species or 37 percent 
of the 1,264 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,264 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that a recent Ninth Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. On December 9, 2004, the 
Director issued guidance to be used in making section 7 adverse 
modification determinations.

Procedural and Resource Difficulties in Designating Critical Habitat

    The Service has been inundated with lawsuits for our failure to 
designate critical habitat, and we face a growing number of lawsuits 
challenging critical habitat determinations once they are made. These 
lawsuits have subjected the Service to an ever-increasing series of 
court orders and court-approved settlement agreements, compliance which 
now consumes nearly the entire endangered species listing program 
budget. This leaves the Service with little ability to prioritize its 
activities to direct scarce listing resources to the listing program 
actions with the most biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis

[[Page 46925]]

provides relatively little additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    The four vernal pool crustaceans involved in this critical habitat 
designation are the Conservancy fairy shrimp (Branchinecta 
conservatio), longhorn fairy shrimp (Branchinecta longiantenna), vernal 
pool fairy shrimp (Branchinecta lynchi), and vernal pool tadpole shrimp 
(Lepidurus packardi). The 11 vernal pool plant species are Butte County 
meadowfoam (Limnanthes floccosa ssp. californica), Contra Costa 
goldfields (Lasthenia conjugens), Hoover's spurge (Chamaesyce hooveri), 
fleshy (or succulent) owl's-clover (Castilleja campestris ssp. 
succulenta), Colusa grass (Neostapfia colusana), Greene's tuctoria 
(Tuctoria greenei), hairy Orcutt grass (Orcuttia pilosa), Sacramento 
Orcutt grass (Orcuttia viscida), San Joaquin Valley Orcutt grass 
(Orcuttia inaequalis), slender Orcutt grass (Orcuttia tenuis), and 
Solano grass (Tuctoria mucronata).
    All of the above vernal pool crustaceans and plants live in vernal 
pools (shallow depressions that hold water seasonally), swales (shallow 
drainages that carry water seasonally), and ephemeral (short duration) 
freshwater habitats. The vernal pool habitats of the 4 vernal pool 
crustaceans and 11 plants addressed in this final rule have a 
discontinuous distribution west of the Sierra Nevada that extends from 
southern Oregon through California into northern Baja California, 
Mexico (Holland and Jain 1978, 1988; Eriksen and Belk 1999).
    Wetlands are defined by plants, soils, and frequency of flooding 
(Cowardin et al., 1979). There is no single, correct, indisputable, 
ecologically sound definition for wetlands, primarily because wetlands 
are so diverse and because the separation between dry and wet 
environments lies along a continuum (Cowardin et al., 1979). Vernal 
pools are a type of seasonally-flooded emergent wetland. Seasonally-
flooded emergent wetlands are areas where surface water is present for 
extended periods, especially early in the growing season, but is absent 
by the end of the season in most years (Cowardin et al., 1979). 
Emergent wetlands are characterized by erect, rooted, herbaceous 
hydrophytes (plants that can grow in soils too waterlogged for most 
other plants), excluding mosses and lichens. This vegetation is present 
for most of the growing season in most years (Cowardin et al., 1979). 
One feature that distinguishes vernal pools from other seasonally 
flooded emergent wetlands is that they are dominated by annual rather 
than perennial species (Jokerst 1990, Zedler 1990).
    Vernal pools form where there is a soil layer below or at the 
surface that is impermeable or nearly impermeable to water (Smith and 
Verrill 1998). Precipitation and surface runoff become trapped or 
perched above this layer. The restrictive soil layers underlying vernal 
pools are of four main types: hardpans, claypans, volcanic flows, and 
non-volcanic rock. The soil parent material underlying the vernal pools 
greatly influences the species composition and hydrologic functioning 
of the vernal pool (Hanes and Stromberg 1998; Smith and Verrill 1998). 
Soils beneath vernal pools are extremely variable and may not be the 
same as soils mapped by soil surveys (Holland and Dain 1990). Vernal 
pools typically occur in landscapes that, on a broad scale, are 
shallowly sloping or nearly level, but on a fine scale may be quite 
bumpy. Some vernal pool landscapes are dotted with numerous rounded 
soil mounds known as mima mounds (Scheffer 1947).
    Vernal pools begin to fill with the fall and winter rains. Before 
ponding occurs, there is a period during which the soil is wetted and 
the local water table may rise. Some pools have a substantial watershed 
that contributes to their water inputs; others may fill almost entirely 
from rain falling directly into the pool (Hanes and Stromberg 1998). 
Although exceptions are not uncommon, the watershed generally 
contributes more to the filling of larger or deeper pools, especially 
playa pools. Even in pools filled primarily by direct precipitation, 
Hanes and Stromberg (1998) report that subsurface inflows from 
surrounding soils can help dampen water level fluctuations during late 
winter and early spring. Vernal pools exhibit four major phases: (1) 
The wetting phase, when vernal pool soils become saturated; (2) the 
aquatic phase, when a perched water table develops and the vernal pool 
contains water; (3) a water-logged drying phase, when the vernal pool 
begins losing water as a result of evaporation and loss to the 
surrounding soils but soil moisture remains high; and (4) the dry 
phase, when the vernal pool and underlying soils are completely dry 
(Keeley and Zedler 1998). Upland areas associated with vernal pools are 
also an important source of nutrients to vernal pool organisms (Eriksen 
and Belk 1999; Wetzel 1975). Vernal pool habitats derive most of their 
nutrients from detritus (decaying matter) washed into pools from 
adjacent uplands, and these nutrients provide the foundation for a 
vernal pool aquatic community's food chain. Detritus (both living and 
dead organic matter) is a primary food source for the vernal pool 
crustaceans addressed in this rule (Eriksen and Belk 1999). Because 
vernal pools are mostly rain-fed, they tend to have low nutrient levels 
and dramatic daily fluctuations in pH, dissolved oxygen, and carbon 
dioxide (Keeley and Zedler 1998).
    Both the amount and timing of rainfall in California and Oregon 
vary greatly from year to year. As a result, pools may fill to 
different extents at different times. The duration of ponding of vernal 
pools also varies, and in certain years some pools may not fill at all. 
Many characteristics of vernal pool plants and animals result from 
these organisms' adaptations to the highly variable and unpredictable 
nature of vernal pools (Holland 1976; Holland and Dains 1990; King et 
al. 1996; Hanes and Stromberg 1998).
    Many vernal pool plants are pollinated by host-specific ground 
dwelling solitary bees in the Andrenidae family (Thorp and Leong 1998; 
Thorp 1976; Griggs 1974 as cited in Stone et al. 1988). The lifecycles 
of these bees are closely tied to those of the vernal pool plants and 
the emergence of the adult bees from their over-wintering nests within 
the adjacent upland habitats (within 100 meters; Leong et al. 1995) of 
vernal pools coincides with the flowering period of several vernal pool 
plant species (Lasthenia sp., Limnanthes sp., Blennosperma sp.). The 
upland areas provide habitat for nests, brood cells, resting and 
overwintering habitat for the bees so they can complete their 
lifecycles. These solitary, ground nesting bee species assist in 
pollinating and cross pollinating of several vernal pool plants (Thorp 
and Leong 1998).
    For more information on vernal pool ecology and the species that 
inhabit them, see the August 6, 2003, final designation of critical 
habitat for the four vernal pool crustaceans and the eleven vernal pool 
plants (68 FR 46684) and the individual listing rules for each species 
(43 FR 44810; 57 FR 24192; 59 FR 48186; 62 FR 14338; 62 FR 34029).

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Previous Federal Actions

    In January 2004, the Butte Environmental Council and several other 
organizations filed a complaint alleging that we: (1) Violated both the 
Act, and the Administrative Procedure Act (APA) by excluding nearly 1 
million ac (405,000 ha) from the final designation of critical habitat 
for the 15 vernal pool species; (2) violated mandatory notice-and-
comment requirements under the Act and APA; and (3) engaged in an 
unlawful pattern, practice, and policy by failing to properly consider 
the economic impacts of designating critical habitat. On October 28, 
2004, the court signed a Memorandum and Order in that case remanding 
the final designation to the Service in part. In particular, the court 
ordered us to: (1) Reconsider the exclusions from the final designation 
of critical habitat for the 15 vernal pool species, with the exception 
of those lands within the five California counties that were excluded 
based on potential economic impacts, and publish a new final 
determination as to those lands within 120 days; and (2) reconsider the 
exclusion of the five California counties based on potential economic 
impacts and publish a new final determination no later than July 31, 
2005. The court did not alter the August 6, 2003, final lands 
designated as critical habitat.
    In order to comply with the court order, on December 28, 2004, the 
Service reopened the comment period on the designation for 30 days (69 
FR 77700); to solicit any new information concerning the benefits of 
excluding and including the lands excluded from the final rule pursuant 
to section 4(b)(2) of the Act on the basis of non-economic 
considerations. The final non-economic exclusions were published in a 
Federal Register notice on March 8, 2005 (70 FR 11140). On June 30, 
2005, a Notice of Availability of the draft Economic Analysis was 
published (70 FR 37739) and the public comment period reopened for 20 
days on the designation to solicit any new information concerning the 
benefits of excluding. This final rule addresses the second requirement 
of the remand: The reconsideration of those lands within the five 
California counties; Butte, Madera, Merced, Sacramento, and Solano, 
that were excluded based on potential economic impacts for the 15 
vernal pool species, incorporates the non-economic exclusions (70 FR 
11140), and finalizes the designation of critical habitat for the 4 
vernal pool crustaceans and 11 vernal pool plants in California and 
Southern Oregon.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the 15 vernal pool species in the 
proposed rule published on September 24, 2002, (67 FR 59883) and 
subsequent Federal Register notices concerning the 15 vernal pool 
species (67 FR 70201 and 68 FR 12336). We requested all interested 
parties to submit comments on the specifics of the proposal, including 
information related to the critical habitat designation, unit 
boundaries, species occurrence information and distribution, land use 
designations that may affect critical habitat, potential economic 
effects of the proposed designation, benefits associated with critical 
habitat designation, potential exclusions and the associated rationale 
for the exclusions, and methods used to designate critical habitat.
    In the December 28, 2004, reopening of public comment period for 
noneconomic exclusions related to critical habitat designation (69 FR 
77700), we requested all interested parties to submit comments on the 
specifics of the proposal, including information related to amount and 
distribution of habitat, essential habitat, rationale for including or 
excluding habitat, benefits associated with including or excluding 
critical habitat designation, current or planned activities on proposed 
critical habitat, and public participation in designating critical 
habitat.
    We contacted all appropriate State and Federal agencies, county 
governments, elected officials, and other interested parties and 
invited them to comment. This was accomplished through telephone calls, 
letters, and news releases faxed and/or mailed to affected elected 
officials, media outlets, local jurisdictions, interest groups and 
other interested individuals. In addition, we invited public comment 
through the publication of legal notices in numerous newspaper and news 
media throughout California and Oregon. In 2002, we provided 
notification of the DEA and proposed rule to all interested parties. At 
the request of Congressman Cardoza's Office, the Merced County Board of 
Supervisors, and the Stanislaus County Board of Supervisors, we held 
two public meetings to explain the December 28, 2004, Federal Register 
notice regarding the noneconomic exclusions to the public and requested 
that they provide comments. We provided contacts where they could 
direct questions regarding the proposed designation. We also posted the 
associated material on our Sacramento Fish and Wildlife Office Internet 
site following the publication on December 28, 2004. Additionally, we 
made available to the public upon request individual maps of the 
noneconomic exclusions.
    On June 30, 2005, a Notice of Availability of the revised draft 
economic analysis was published (70 FR 37739) and the public comment 
period reopened for 20 days. We asked specifically for comments on the 
following: (1) Assumptions reflected in the economic analysis regarding 
land use practices and current, planned, or reasonably foreseeable 
activities in the subject areas, including comments or information 
relating to the potential effects that the designation could have on 
private landowners as a result of actual or foreseeable State and local 
government responses due to the California Environmental Quality Act; 
(2) Land use practices and current, planned, or foreseeable activities 
in the subject areas and their possible impacts on proposed critical 
habitats; (3) Foreseeable economic or other impacts resulting from the 
proposed designation of these critical habitats, including impacts that 
may not have been addressed in the draft economic analysis and, in 
particular, any impacts on small entities or families; (4) Economic and 
other values associated with designating critical habitat for these 
species; (5) Whether our approach to critical habitat designation could 
be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments; (6) The draft economic analysis noted that 
approximately 80 percent of the total costs are represented by 25 
percent of the critical habitat. We identified that we were considering 
excluding those areas, which were identified in Table IV-4 of the draft 
economic analysis as the 20 highest cost areas based on FIPS, and 
requested comment as to whether the Secretary should exclude these 
areas based on the benefits associated with exclusion or inclusion of 
these areas in the final critical habitat which have not already been 
identified. The basis of the proposed exclusion that was being 
considered is purely economic; (7) Whether the Secretary exclude the 35 
highest cost areas based on the figures in Table IV-4 of the draft 
economic analysis and what are the benefits of exclusion or inclusion 
of these areas?; (8) Whether the Secretary exclude the 50 highest cost 
areas based on the

[[Page 46927]]

figures in Table IV-4 of the draft economic analysis and what are the 
benefits of exclusion or inclusion of these areas?; (9) Table IV-2 of 
the draft economic analysis details increases in the costs per home 
related to this critical habitat designation. In addition to any other 
exclusions, the Secretary considered excluding any areas identified as 
experiencing a per-home increase in excess of $3,000 from the 
designation of critical habitat; and requested commenters to identify 
any benefits related to the exclusion or inclusion of those areas; (10) 
Queried commenters on whether there any benefits or costs of the 
proposed designation that the draft economic analysis failed to 
capture?; and requested commenters to provide as much information as 
possible related to any costs or benefits that were not identified; and 
(11) Queried whether our approach to critical habitat designation could 
be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    We conducted outreach on the Notice of Availability for the draft 
economic analysis and re-opening of the public comment period on the 
proposed designation by contacting Federal, State and County government 
representatives, local news media, and interested parties who 
participated or had involvement in the original designation process. 
The information regarding the draft economic Analysis and other 
information and outreach materials were posted on the Sacramento Fish 
and Wildlife Office Web site and made available via the Internet at 
https://sacramento.fws.gov/.
    We received a total of 972 comment letters during the first four 
comment periods, and 70 during the most recent comment period, which 
ended on July 20, 2005. Comments were received from Federal, Tribal, 
State and local agencies, and private organizations and individuals. 
Similar comments were grouped into several general issue categories 
relating specifically to the proposed critical habitat determination, 
the proposed exclusions, and the draft economic analysis, and are 
identified below. For a review of the 972 comment letters received 
during previous comment periods, and how these were either addressed or 
responded to, please refer to the our final designation of critical 
habitat for these species published on August 6, 2003 (68 FR 46683) and 
our re-evaluation of non-economic exclusions published on March 8, 2005 
(70 FR 11140).
    Of the 71 comment letters received during our most recent, 20-day 
public comment period, 18 letters contained comments of a biological 
nature that did not relate to the draft economic analysis or to 
economic issues related to the critical habitat designation. Nearly all 
of the letters received contained some comments relating to economic 
issues. We received comments from private landowners, private 
conservation organizations, development and investment companies, City 
and County governmental bodies, chambers of commerce, members of 
congress, and concerned citizens. We reviewed all comments received for 
substantive issues and new information regarding the vernal pool plants 
and vernal pool crustaceans. Similar comments were grouped into general 
issue categories relating specifically to the proposed critical habitat 
determination and the DEA and are identified below.

Peer Review

    The proposed designation of critical habitat for the 15 vernal pool 
species was peer reviewed by six biologists who have knowledge of 
vernal pool ecosystems and the 15 species addressed in this rule. Two 
of the reviewers strongly endorsed the approach in the proposal that 
protecting vernal pools in the context of surrounding upland watersheds 
is crucial for the conservation and long-term survival of the listed 
vernal pool species, and stated that the rule placed appropriate 
emphasis on protecting intact vernal pool complexes. The reviewers also 
cited the importance of conserving a wide range of vernal pool habitat 
types and biological diversity. For a discussion of the peer review of 
vernal pool critical habitat designation, please refer to our August 6, 
2003, final designation (68 FR 46683).

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments previously received from State agencies regarding the 
September 24, 2002, proposal to designate critical habitat for the 15 
vernal pool species (67 FR 59983) are discussed in the August 6, 2003, 
final designation (68 FR 46683). There were no State agency comments 
received during the December 28, 2004, reopening of public comment 
period (69 FR 77700), and no State agency comments were received as 
part of the 20-day public comment period on the draft economic analysis 
that ended on July 20, 2005 (70 FR 37739).

Other Public Comments and Responses

Comments Related to the Designation Process

    Comment 1: Two commenters pointed out that the 20-day public 
comment period was too short and did not meet the 60-day standard 
established by Executive Order 12866.
    Our Response: Pursuant to our implementing regulations at 50 CFR 
424.16(c)(2), we are required to provide at least a 60-day public 
comment period on any proposal to list, delist, or reclassify a 
species, or designate or revise critical habitat. On August 6, 2003, we 
finalized critical habitat for these 15 vernal pool species. As part of 
the process of that rulemaking we had an initial 60-day public comment 
period on our proposal of critical habitat (70 FR 37739), which was 
extended an additional 28 days. On November 21, 2002, during this 
public comment period, a draft economic analysis of that proposal was 
released with 32 days left in the public comment period (67 FR 70201). 
On March 14, 2003, the public comment period for the draft economic 
analysis was reopened for an additional 14 days (68 FR 12336). In 
addition, on December 28, 2004, we opened a 30-day public comment 
period (69 FR 77700) on the non-economic exclusions that were included 
in our August 6, 2003, final rule (68 FR 46683). As such, we believe 
that our original designation was in compliance with our implementing 
regulations.
    In January 2004, the Butte Environmental Council and several other 
organizations filed a complaint alleging that our designation of 
critical habitat for the 15 vernal pool species was unlawful. On 
October 28, 2004, the court signed a Memorandum and Order in that case 
remanding the final designation to the Service in part. In particular, 
the court ordered us to: (1) Reconsider the exclusions from the final 
designation of critical habitat for the 15 vernal pool species, with 
the exception of those lands within the five California counties that 
were excluded based on potential economic impacts, and publish a new 
final determination as to those lands within 120 days; and (2) 
reconsider the exclusion of the five California counties based on 
potential economic impacts and publish a new final determination no 
later than July 31, 2005. The court did not alter the August 6, 2003, 
final lands designated as critical habitat. A part of this 
reconsideration process, we reopened the public comment period for 30 
days

[[Page 46928]]

(69 FR 77700); to solicit any new information concerning the benefits 
of excluding and including the lands excluded from the final rule 
pursuant to section 4(b)(2) of the Act on the basis of non-economic 
considerations. The final non-economic exclusions were published in a 
Federal Register notice on March 8, 2005 (70 FR 11140). On June 30, 
2005, a Notice of Availability of the draft Economic Analysis was 
published (70 FR 37739) and the public comment period reopened for 20 
days on the designation to solicit any new information concerning the 
benefits of excluding. The public comment period on the revised 
economic analysis was limited to 20 days due to the court ordered time 
frame to publish our final determination.
    However, we believe that having the public comment period on the 
previous proposal for a total of 132 days and on our reconsideration of 
the exclusions in the previous final designation for an additional 50 
days is consistent with our regulations at 50 CFR 424.16(c)(2).
    Comment 2: One comment letter asserted the PCEs are so general and 
vague that it would be difficult to identify if one was in an area 
containing PCEs, and that the PCEs as written, violate the Alameda 
whipsnake standard as defined in Home Builders Ass'n of Northern Cal. 
v. U.S. Fish and Wildlife Serv. (268 F. Supp. 2d).
    Our Response: The two PCEs contained in the final rule for the four 
crustacean species have been expanded to four PCEs in an effort to more 
effectively describe critical habitat and to meet the standard 
identified in Home Builders Ass'n of Northern California. The 11 plant 
species have two PCEs which have been refined to better describe the 
characteristics that describe their habitat. These PCEs have been 
developed using the best available scientific information on the 
characteristics the species need to survive and reproduce. See the 
``Primary Constituent Elements'' section below for a complete 
description of the PCEs for each species addressed by this rule.
    Comment 3: On commenter asserted that any designations issued prior 
to the August 6, 2004, ruling in the Gifford Pinchot Task Force et al. 
v. USFWS case (378 F.3d 1059, 1070 (Ninth Cir. 2004)) have not properly 
accounted for the resulting recovery standard and mitigation 
requirements and that we should withdraw the designation and reconsider 
the economic impacts.
    Our Response: This designation of critical habitat, and associated 
exclusions, for the 15 species is the result of a reevaluation of 
essential habitat for the species throughout their range, and not just 
the five counties excluded in the original rule designating critical 
habitat. In the course of establishing this designation, we have taken 
into account the direction provided by the Ninth Circuit in Gifford 
Pinchot.
    Comment 4: One commenter provided a lengthy legal analysis of our 
approach to combining the costs of listing actions with critical 
habitat designations, and found our approach unsatisfactory in light of 
a District of Columbia District Court Decision (Cape Hatteras, 344 F. 
Supp. 2d).
    Our Response: In conducting economic analyses, we are guided by the 
10th Circuit Court of Appeal's ruling in the New Mexico Cattle Growers 
Association case (248 F.3d at 1285), which directed us to consider all 
impacts, ``regardless of whether those impacts are attributable co-
extensively to other causes.'' The draft economic analysis estimates 
the total cost of species conservation activities without subtracting 
the impact of pre-existing baseline regulations (i.e., the cost 
estimates are fully co-extensive). By identifying the total costs 
attributable to listing, including the designation of critical habitat, 
the draft economic analysis complies with direction from the U.S. 10th 
Circuit Court of Appeals.
    Comment 5: One commenter suggested that the Secretary of Interior 
should not have broad discretion to override critical habitat 
designation decisions that are made by biologists because it opens the 
door for political manipulation.
    Our Response: Section 4(b)(2) of the Act requires us to designate 
critical habitat on the basis of the best scientific and commercial 
information available, and to consider the economic and other relevant 
impacts of designating a particular area as critical habitat. We may 
exclude areas from critical habitat upon a determination that the 
benefits of exclusions outweigh the benefits of specifying such areas 
as critical habitat as long as those exclusions do not result in the 
extinction of the listed species. The Congressional Record is clear 
that Congress contemplated occasions where the Secretary could exclude 
the entire designation. In addition, the discretion that Congress 
anticipated would be exercised in section 4(b)(2) of the Act is 
extremely broad. ``The consideration and weight given to any particular 
impact is completely within the Secretary's discretion'' (Congressional 
Research Service 1982).
    Comment 6: A commenter has asserted that there may be a conflict of 
interest, because we have contracted with Dr. David Sunding and CRA 
International to develop the economic analysis of this designation of 
critical habitat for the 15 vernal pool species because he previously 
conducted a study of critical habitat economics funded by the building 
industry and other commercial interests. The commenter suggests that 
the use of an economic model originally developed in the course of this 
study is inappropriate.
    Our Response: In asking the court to remand the original rule to 
the Service, we explicitly acknowledged that additional effort must be 
made in conducting the economic analysis in order to allow the 
Secretary to make exclusions on the basis of economics under section 
4(b)(2). The economic analysis performed by CRA International used 
pubic data and information and provided for more specificity in 
identifying effects than any of our previous economic analyses. We 
believe that this approach is consistent with the spirit of the 
Service's representations to the court. In fact, the 4(b)(2) exclusions 
differ markedly from those included in our original rule. To our 
knowledge, CRA is the only economic contractor performing this type 
economic analysis with this degree of precision on a landscape basis.
    We do not believe that hiring Dr. David Sunding and CRA 
International to conduct the economic impact analysis of this critical 
habitat designation, considering his prior receipt of research funding 
from the building industry, establishes a conflict of interest. CRA 
International performed a conflict check prior to initiating work on 
the current study and no conflicts were discovered. Neither CRA nor Dr. 
Sunding holds any financial interests that would be benefited as an 
outcome of the analysis and subsequent critical habitat designation.
    Hiring a new firm, CRA, to prepare an independent economic analysis 
of this proposed regulation serves two purposes. First, it provides a 
second estimate of overall impacts that can be compared with the cost 
analysis that supported the 2003 final designation. Second, the new 
analysis provides additional detail regarding potential costs at sub-
county level that was not provided in the 2003 analysis, allowing for a 
refinement of the 4(b)(2) decision process.
    We note that the total impact estimates in the two reports are very 
similar. In the 2003 analysis, the estimate of the total costs of 
section 7 consultation related to the vernal pool species was estimated 
to be $1.4 billion over twenty years. In CRA's analysis,

[[Page 46929]]

total impacts are estimated to be $0.9 billion over twenty years. CRA 
reports impacts that are 65 percent of those in the 2003 study, while 
considering critical habitat acreage that is 75 percent of the 2003 
critical habitat. The main distinction between the studies is that the 
CRA analysis facilitates a more spatially precise definition of 
impacts.
    Comment 7: One commenter asserted that we violated the Act by 
failing to distinguish between those designated vernal pool systems 
that are occupied and those that are not.
    Our Response: Each of the critical habitat units may include some 
areas that are unoccupied by the vernal pool crustaceans and vernal 
pool plants. ``Unoccupied'' is defined here as an area that contains no 
hatched vernal pool crustaceans or observed above-ground vernal pool 
plants, and that is unlikely to contain a viable cyst or seed bank. 
While section 4(b)(2) of the Act states that critical habitat shall be 
designated on the basis of the best available scientific data, 
determining the specific areas that the vernal pool crustaceans or 
vernal pool plants occupy is difficult because, depending on climatic 
factors and other natural variations in habitat conditions, the size of 
the localized area in which aboveground plants or hatched crustaceans 
appear may fluctuate dramatically from one year to another. In some 
years, individuals may be observed throughout a large area, and in 
other years they may be observed in a smaller area or not at all. 
Because it is logistically difficult to determine how extensive the 
cyst or seed bank is at any particular site, and because hatched vernal 
pool crustaceans or above-ground vernal pool plants may or may not be 
present in all vernal pools within a site every year, we cannot 
quantify in any meaningful way what proportion of each critical habitat 
unit may actually be occupied by the vernal pool crustaceans or vernal 
pool plants at any one time. Due to this difficulty in differentiating 
between occupied and unoccupied habitat, areas of unoccupied habitat 
may be interspersed with areas of occupied habitat in each unit.
    The inclusion of unoccupied habitat in our critical habitat units 
reflects the dynamic nature of the habitat and the life history 
characteristics of the vernal pool crustaceans and vernal pool plants. 
Unoccupied areas provide areas into which populations might expand, 
provide connectivity or linkage between groups of organisms within a 
unit, and support populations of pollinators and seed dispersal 
organisms. We have designated both occupied and unoccupied areas based 
on the criteria in the Act and based on our belief that they are in 
need of special management or protection.

Comments Related to Cooperative Efforts

    Comment 8: One commenter believed that this designation would 
hinder essential voluntary conservation efforts (Habitat Conservation 
Plan (HCP), Natural Communities Conservation Program (NCCP), etc.), 
both on-going and in the future.
    Our Response: HCPs are one of the most important tools for 
reconciling land use with the conservation of listed species on non-
Federal lands. We anticipate that future HCPs and those in progress 
within the range of the 15 vernal pool species will include them as a 
covered species and provide for their long term conservation. We expect 
that HCPs undertaken by local jurisdictions (e.g., counties and cities) 
and other parties will identify, protect, and provide appropriate 
management for those specific lands within the boundaries of the plans 
that are essential for the long term conservation of the species. If an 
HCP that addresses the vernal pool species as covered species is 
ultimately approved, we will reassess the critical habitat boundaries 
in light of the HCP. If, consistent with available funding and program 
priorities, we elect to revise this designation, we will do so through 
a subsequent rulemaking.
    The designation of critical habitat should not deter participation 
in the NCCP or HCP processes. Approvals issued under these processes 
include assurances of no additional mitigation through the HCP No 
Surprises regulation (63 FR 8859).
    Comment 9: Numerous commenters suggested that we should exclude 
Placer County because the County is working on an HCP (the Placer 
County Conservation Plan) that would provide for the protection of the 
species addressed in this rule. Another commenter suggested that 
because the Placer Ranch development proposes to protect vernal pools 
and other wetlands and will mitigate impacts to any aquatic resources 
that their property should be excluded from this designation.
    Our Response: We support and encourage the development of HCPs and 
conservation plans, and encourage developments to incorporate listed 
species protections and mitigations into their development plans. HCPs 
are one of the most important tools for reconciling land use with the 
conservation of listed species on non-Federal lands. We expect that 
HCPs undertaken by local jurisdictions (e.g., counties and cities) and 
other parties will identify, protect, and provide appropriate 
management for those specific lands within the boundaries of the plans 
that are essential for the long term conservation of the species.
    We do not, however, adjust the designation of critical habitat for 
listed species based on future planning efforts where the specific 
protections for listed species are not known and where the public has 
not yet had the opportunity to comment on those protection measures. If 
an HCP that addresses the vernal pool species as covered species is 
ultimately approved, we will reassess the critical habitat boundaries 
in light of the HCP. If, consistent with available funding and program 
priorities, we elect to revise this designation, we will do so through 
a subsequent rulemaking. For the standards needed for an HCP to alter 
the designation of critical habitat see the ``Application of Section 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' 
section below.
    The economic analysis on the critical habitat for the 15 vernal 
pool species identified Placer County as an area with significant costs 
associated with the designation of critical habitat for the vernal pool 
fairy shrimp. As a result of the economic analysis, the Secretary has 
determined that it is appropriate to exclude the majority of critical 
habitat in western Placer County from the designation (See Relationship 
of Critical Habitat to Economic Impacts--Exclusions Under Section 
4(b)(2) of the Act).
    Comment 10: One commenter asserted that since the Western Riverside 
County Multi-species HCP (MSHCP) was not mentioned in the conservation 
efforts section of our Draft Recovery Plan for Vernal Pool Ecosystems 
of California and Southern Oregon we must have determined that this 
effort serves no conservation benefit for vernal pool fairy shrimp and, 
therefore, does not meet the criteria for excluding areas from the 
critical habitat designation. Another commenter asserted the provisions 
of the MSHCP are not sufficient to ensure recovery of the vernal pool 
fairy shrimp.
    Our Response: We discussed the conservation benefits of the, then 
draft, Western Riverside County MSCHP at length in our August 6, 2003, 
final rule designating critical habitat for the four vernal pool 
crustaceans and eleven vernal pool plants (68 FR 46683). In that 
discussion we determined that the proposed efforts, including 
conservation on approximately 153,000 ac (62,000 ha), were sufficient 
to warrant excluding Unit 33 for the vernal pool fairy shrimp. The 
Western Riverside County MSCHP was finalized on June 22, 2004. For a

[[Page 46930]]

complete description of our decision on excluding Unit 33 based on the 
content of the Western Riverside County MSHCP see our August 6, 2003, 
final rule (68 FR 46683).

Comments Related to the Impacts of Critical Habitat Designation

    Comment 11: Designation will threaten the California State 
University (CSU) Campus development in west Placer County and prevent 
the development of higher learning opportunities.
    Our Response: The area proposed for the development of the CSU 
Campus in west Placer County is within a census tract that has been 
excluded from designation of critical habitat on economic grounds under 
section 4(b)(2) of the Act.
    Comment 12: Several commenters requested that we modify the areas 
proposed for designation as critical habitat either to increase the 
protections afforded the species or in an effort to better facilitate 
local long-range planning efforts and reduce economic impacts to 
private landowners.
    Our Response: In developing our proposal of critical habitat for 
the 15 vernal pool species, we identified those areas that, based on 
the scientific and commercial data available, we have determined 
contain essential occurrences of each of the species and/or are defined 
by the physical and biological features essential to their 
conservation. We used a number of criteria in defining critical habitat 
including, but not limited to, the known species occurrence and 
distribution data, habitat types, degree of habitat fragmentation, soil 
and landform relationships, connectivity and dispersal factors, and 
conservation biology principles. After refining our proposal and 
weighing the best available information, we conclude that the areas 
designated by this final rule, including currently occupied and 
unoccupied areas, are essential for the conservation of these species.
    We also excluded lands from the final designation that may contain 
vernal pool habitat, the vernal pool species, and the Primary 
Constituent Elements (PCEs), but that we determined to not be essential 
to the conservation of the vernal pool crustaceans and vernal pool 
plants. We believe that we used the best scientific and commercial 
information available in determined those areas essential for the 15 
vernal pool species that were proposed as critical habitat and 
subsequently finalized.

Comments Related to Information Quality

    Comment 13: One commenter requested that we incorporate the results 
of Dr. Bob Holland's biogeographical research project, as presented at 
the Western Section of the Wildlife Society meetings, into the 
designation process.
    Our Response: It is the goal of the Service to utilize the most 
recent scientific information available. In developing critical habitat 
designations, we analyze all pertinent scientific and commercial 
information available to make our final determinations. In the 
development of this designation, we contacted numerous species experts 
and other members of the scientific community, including Dr. Holland.
    Comment 14: Two letters commented that while 2,213 ac (896 ha) of 
the Placer Ranch development were designated as critical habitat, only 
7 ac (~3 ha) are actually classified as vernal pools and that 
designating all these acres violates the Act.
    Our Response: Placer Ranch has been excluded from this final rule 
designation. For a more detailed discussion, please see the section 
``Relationship of Critical Habitat to Economic Impacts--Exclusions 
Under Section 4(b)(2) of the Act'' below.
    Comment 15: Another commenter requested that poor quality vernal 
pool systems and those designated areas lacking the PCEs be excluded 
from the designation.
    Our Response: Poor quality vernal pool systems are not necessarily 
void of listed vernal pool crustaceans or plants, and are candidates 
for active restoration projects. In designating critical habitat, we 
have considered how this designation highlights habitat that needs 
special management considerations or protection and helps ensure that 
all local habitat conservation planning efforts are consistent with 
conservation objectives for these species. Once a vernal pool habitat 
has been protected from direct filling, it is still necessary to ensure 
that the habitat is not rendered unsuitable for vernal pool species 
because of factors such as altered hydrology, contamination, nonnative 
species invasions, other incompatible land uses or neglect. Because 
their condition is already marginalized, degraded habitats are likely 
to be more vulnerable to these threats than pristine systems and in 
need of special management actions.
    When determining critical habitat boundaries, we made every effort 
to avoid designating developed areas such as buildings, paved areas, 
boat ramps and other structures that lack the PCEs for the 15 vernal 
pool species. Any such structures inadvertently left inside critical 
habitat boundaries are not considered part of the unit. This also 
applies to land on which structures sit directly. Therefore, Federal 
actions limited to these areas would not trigger section 7 
consultations, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.

Comments Related to Species Viability

    Comment 16: One commenter suggested it is essential that the vernal 
pool systems on Travis Air Force Base (AFB) be designated as critical 
habitat to ensure the recovery potential of these species.
    Our Response: The Act requires that the Secretary of the Interior 
shall designate or revise critical habitat based upon the best 
scientific and commercial data available, after taking into 
consideration the economic impact, impact to national security, and any 
other relevant impact of specifying any particular area as critical 
habitat. The Secretary may exclude any area from critical habitat if 
she determines that the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat, 
unless the failure to designate such area as critical habitat will 
result in the extinction of the species concerned. The two AFBs were 
not eligible for designation through operation of section 4(a)(3)(B) of 
the Act as they had approved Integrated Natural Resource Management 
Plans (INRMPs), which provided for the conservation of the species. For 
a detailed discussion of our noneconomic exclusion analysis used in our 
final designation of critical habitat for the 15 vernal pool species, 
please refer to our August 6, 2003, final designation (68 FR 46683) and 
in the ``Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act'' section below.
    Comment 17: We received one comment stating that core recovery 
areas need to be designated as critical habitat in order to ensure that 
recovery will occur.
    Our Response: We recognize that designation of critical habitat may 
not include all of the habitat areas that may eventually be determined 
to be necessary for the conservation of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for the conservation 
of the species. Areas outside the critical habitat designation will 
continue to be subject to conservation actions that may be

[[Page 46931]]

implemented under section 7(a)(1), the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, and the applicable 
prohibitions of section 9 of the Act, as determined on the basis of the 
best available information at the time of the action. Federally funded 
or assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation should not 
control the direction and substance of future recovery plans, HCPs, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Comments Related to Economic Issues

    Comment 18: Several commenters stated that the DEA underestimated 
the delay in project completion resulting from Section 7 consultation.
    Our Response: Delay times resulting from section 7 consultation 
were calculated based on a review of available biological opinions. 
Delay time was calculated based on the average number of days from 
submission of a completed application to the date of a final decision. 
We are provided with 90 days to complete a biological opinion and 45 
days to issue the biological opinion to the consulting agency, for a 
total of 135 days from initiation to issuance (50 CFR 402.14(e)). 
According to the DEA (CRA International 2005) the average time for 
completion of a section 7 consultation is 111 days, well within our 
statutory timeframes.
    Comment 19: Several comment letters stated that vernal pool 
mitigation costs in Sacramento and Placer Counties are higher than the 
figure used in the DEA.
    Our Response: Mitigation costs were derived from a survey of 
mitigation banks, developers and consultants familiar with the 
permitting process. We believe that these data represent the best 
available information on mitigation costs in the affected counties.
    Comment 20: One commenter stated that the DEA omits impacts related 
to the Lincoln Bypass and Placer Parkway projects.
    Our Response: Placer County Transportation Planning Authority is in 
the process of developing the Tier 1 environmental report for the 
Placer Parkway project. Project alternatives have yet to be finalized 
but are expected to be mapped by September 2005. The Lincoln Bypass 
project is more advanced. The EIR document is complete and pending 
final approval; construction is anticipated to begin within two years.
    The Lincoln Bypass project is entirely within Census Tract 
06061021303. The Placer Parkway will likely be within Census Tract 
06061021301. We note that these tracts are already within the most 
economically impacted group of census tracts, so inclusion of 
additional impacts is unlikely to have a meaningful effect on the 
relative ranking of these tracts.
    Comment 21: The Sacramento Area Council of Governments (SACOG) 
wrote to comment on the population growth figures used in the DEA. The 
SACOG provided new forecasts that it believes are more applicable than 
the forecasts used in the DEA.
    Our Response: Based on public comments offered by SACOG, Blueprint 
growth projections to 2025 by census tract were compared with the 
earlier growth forecasts furnished by SACOG. For the majority of census 
tracts, the projections were similar and substitution of the Blueprint 
forecasts would not have a material effect on the relative ranking of 
impacts by census tract.
    We note that the Blueprint forecast differed substantially from 
earlier SACOG forecasts for Census Tract 06067008701 in Sacramento 
County. In this instance, the Blueprint forecast indicated that at 
least 12,000 fewer dwelling units would be constructed by 2025. Even in 
this case, however, use of the Blueprint data would not have a material 
effect on the relative ranking of this tract since it would remain the 
most economically impacted census tract in the sample.
    Comment 22: One comment letter noted that the Placer Vineyards 
Specific Plan straddles two census tracts in Placer County.
    Our Response: Since a single development accounts for a significant 
fraction of growth in this area, segregating impacts by Census Tract 
may be artificial. Thus, impacts for tracts 06061020902 and 06061021301 
are aggregated in the final analysis. We excluded both census tracts 
from this final rule based on economic impacts. For a more detailed 
discussion, please see the section ``Relationship of Critical Habitat 
to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act'' 
below.
    Comment 23: Several comment letters stated that the DEA failed to 
provide a balanced assessment of economic benefits and costs in 
relation to the proposed critical habitat designation. One commenter 
also included a general list of potential benefits that may be 
associated with the designation of critical habitat and suggested that 
the Service should include such effects in its economic analysis.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Service's approach for estimating economic impacts includes both 
economic efficiency and distributional effects. The measurement of 
economic efficiency is based on the concept of opportunity costs, which 
reflects the value of goods and services foregone in order to comply 
with the effects of the designation (e.g., lost economic opportunity 
associated with restrictions on land use). Where data are available, 
the economic analyses attempt to measure the net economic impact. 
However, no data were found that allowed for the measurement of such an 
impact, nor was such information submitted during the public comment 
period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus the Service believes 
that explicit consideration of broader social values for the species 
and its habitat, beyond the more traditionally defined economic 
impacts, is not necessary as Congress has already recognized the social 
importance of such benefits through the protections of the Act.
    The Service notes that as a practical matter, it is difficult to 
develop credible estimates of such values as they are not readily 
observed through typical market transactions. The Secretary places the 
utmost value on conserving any and all threatened and endangered 
species and the habitats upon which they depend and thus considers 
whether the economic impacts (both positive and negative) are 
significant enough to merit exclusion of any particular area. In the 
case of this rule, the Secretary made the determination that the 
economic benefits of exclusion exceeded the benefit of inclusion in 
only 23 of 158 affected census tracts. This effectively recognizes the 
benefits of including areas beyond the minimum necessary to avoid 
extinction, despite significant economic costs.

[[Page 46932]]

    Comment 24: Impacts relating to construction of UC Merced are 
assigned to the wrong Census tract.
    Our Response: Impacts relating to conservation of vernal pools at 
the site of UC Merced are assigned to Census Tract 06047001901, which 
is the proper tract.
    Comment 25: Several comments questioned the appropriateness of the 
impact methodology used to measure costs of critical habitat.
    Our Response: The report was peer reviewed by two leading academics 
in the field of urban economics. Comments were strongly supportive of 
the method developed by Dr. Sunding and CRA, the data sources employed, 
and the assumptions underlying the analysis. Both reviewers noted that 
the method was consistent with generally accepted principles in urban 
economics, with one reviewer concluding that ``the results are credible 
and it is hard to see how the remaining uncertainties about the 
economic impacts of the regulations could be resolved by further or 
more sophisticated analyses.''
    For information on previous public comments received refer to the 
August 6, 2003 final designation of critical habitat for the 15 vernal 
pool species (68 FR 46684) and the March 8, 2005 (70 FR 11140) final 
notice concerning the non-economic exclusions.

Summary of Changes From Proposed Rule

    In developing the final designation of critical habitat for the 4 
vernal pool crustaceans and 11 plants, we reviewed public comments 
received on the proposed designation of critical habitat published on 
September 24, 2004 (67 FR 59884), and during reopened comment periods 
on non-economic exclusions (December 28, 2004; 69 FR 77700) and on the 
second draft economic analysis (March 8, 2005; 70 FR 11140). In 
addition, we conducted further evaluation of lands proposed as critical 
habitat; refined our mapping methodologies; and exempted or excluded 
additional essential habitat from the final designation.
    Specifically, we are making the following changes to the final rule 
from the proposed rule published on September 24, 2002: We mapped 
critical habitat more precisely by eliminating habitat areas that did 
not contain the PCEs based on specific information provided by 
commenters or by updated remote sensing data. Although we attempted to 
remove as many developed areas (areas that have no value as vernal pool 
habitat) as possible before publishing the proposed rule, we were not 
able to eliminate all developed areas. Since publication of the 
proposed rule, we were able to further eliminate a small amount of 
developed area, which has resulted in a more precise delineation of 
essential habitat containing one or more of the primary constituent 
elements. This resulted in a minor reduction in the total acreage 
published in the proposed rule. However, it is not possible to remove 
each and every one of these developed areas even at the refined mapping 
scale used: therefore, the maps of the designation still include areas 
that do not contain primary constituent elements. These areas are not 
being designated as critical habitat. Most of the units received some 
refinement, and a few were divided into subunits.
    The common name for the species Castilleja campestris ssp. 
succulenta was changed in the final rule (from succulent owl's-clover 
to fleshy owl's-clover) to reflect the name used under the listing of 
the species (62 FR 14338). This was done to avoid confusion between the 
species' listing and the designation of critical habitat for it.
    We exempted lands administered by the Department of Defense on 
Beale Air Force Base and Travis Air Force Base under section 4(a)(3)(B) 
of the Act (70 FR 11140). Lands we considered, but excluded from the 
final designation under section 4(b)(2) of the Act for noneconomic 
reasons included (1) lands administered by the U.S. Fish and Wildlife 
Service on the Kern, Sacramento, San Francisco Bay, and San Luis 
National Wildlife Refuges and the Colman National Fish Hatchery (70 FR 
11140 and 68 FR 46684) (2) 16,033 ac (6,488 ha) of lands administered 
by the Bureau of Land Management within the Carr